Out of Order: Stories from the History of the Supreme Court

The retired justice shares tales that present the Court’s justices through history as human beings rather than oracles on high.

Right about now, retired Supreme Court Justice Sandra Day O’Connor might be wondering whether it was worth the bother to write her latest book.

Her amiable effort to give lay readers a peek inside the Marble Palace has been sharply criticized in a number of reviews, most notably in The New York Times Book Review, which called the book a “disjointed collection of anodyne anecdotes and bar-association bromides about the history of the Supreme Court.” The Seattle Times called it “eye-glazing” and dissed it for its “lack of interesting stories.”

At the risk of piling on, I’ll add another nit to pick: several passages in the book are reminiscent of a book O’Connor wrote a decade ago, The Majesty of the Law. One example: the sentence “The current head count of Justices on the Court is engraved neither in stone nor in the Constitution,” which appears on page 125 of the 2003 book, is repeated on page 11 of the new work, with a few words added. Some other passages in Out of Order are lightly rewritten from the earlier book.

But recycling is not particularly new in the world of books, especially with authors as busy as O’Connor, who has devoted much energy in retirement to promoting civics education. Out of Order is probably best — and most charitably — assessed in that context, as an effort to inform the public about the least-known branch of government. The fact that many of her anecdotes are familiar to those of us who follow the Supreme Court is of no importance to readers who will be learning about its traditions and personalities for the first time. Anything that helps the public understand how the Court works and why it is so important is all to the good.

Instead of a dry recitation of the separation of powers doctrine, for example, she describes inter-branch collisions in more human terms — from Lincoln’s suspension of habeas corpus to FDR’s 1937 court-packing plan and the 1952 steel-seizure case. That leads O’Connor into a brief discussion of the Guantanamo detainee cases, which reined in presidential power during the war on terror.

O’Connor played a key role in the Guantanamo cases before she retired in 2006, and it would have been valuable if she had used the opportunity to bring the reader inside the decision-making process for those historic decisions. But O’Connor is not that kind of justice, and Out of Order is not that kind of book.

The Court’s first female justice would rather tell us about John Marshall’s love of wine whenever he found an excuse to drink it, or Thurgood Marshall’s storytelling, William Rehnquist’s impish humor or the “disorder” in William O. Douglas’ personal life — which included four wives. She enjoys larger-than-life personalities, and the Court has had its share of them.

O’Connor’s stories present the justices as human beings rather than oracles on high. She tells the little-known tale of circuit-riding justices in the early days of the republic. Some would spend more time handling cases outside of Washington than in the Supreme Court, putting up with primitive roads and sketchy inns in pursuit of spreading justice throughout the country. In so doing, she says they served almost as ambassadors of the new national government and stayed in touch with citizens in ways that the current, more cloistered Court does not.

Also with a personal touch, O’Connor tells how justices are picked for the Court, and how they decide to leave. She even tries to pass on some of the Court’s jokes and funny moments — a daunting task at an institution that takes itself too seriously. She recounts an April Fools’ Day joke in the early 1980s aimed at Chief Justice Warren Burger, a formal, even pompous man. Then-Associate Justice Rehnquist set up a photographer outside the Court who would take pictures of tourists next to a life-sized cutout of the chief justice — and Rehnquist made sure Burger saw it on his way to work. (His clerks also alerted reporters, including this one, to the prank.)

This is a book full of harmless and only modestly revealing anecdotes. To the extent that reviewers and readers expected more, it is probably the fault of the publisher who hyped it as a “rare glimpse into the Supreme Court’s inner workings.” During O’Connor’s media tour, interviewers from Jon Stewart to Terry Gross tried to pull more out of her — gossip, secrets, anything. The no-nonsense Arizonan shut them down fast.

When The Daily Show’s Stewart asked her a question as benign as who was the Court’s best writer, she said flatly, “I’m not going to tell you.” So be it. What O’Connor did decide to tell us in this book is still worth a look.

Tony Mauro, Supreme Court correspondent for The National Law Journal, has covered the Supreme Court for 33 years.